The Democrats' Gorsuch Gambit

The Democrats' Gorsuch Gambit
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Democrats secured enough votes Monday to filibuster President Trump’s Supreme Court nominee, setting up a showdown with Republicans who have vowed to fill the court vacancy this week, even if it means eliminating the filibuster for all future court nominees.

In promising an unprecedented filibuster of Trump’s nominee, Judge Neil Gorsuch, Democrats appear to have made the political calculation that they have little to gain from supporting Gorsuch’s nomination, and that they are better off politically in opposing anything Donald Trump touches.

Democrats know Gorsuch will be confirmed this week barring an unexpected shift; GOP Leader Mitch McConnell said the Senate would confirm Trump's pick on Friday, even if that means invoking the so-called nuclear option to eliminate the chamber's 60-vote threshold requirement. Still, the vast majority of Democrats are united in resistance, buoyed by an active, restive base that wants them to hold the hard line—even if it means a more partisan Washington.

But the party is not entirely unified on the issue. Progressive groups have gone so far as to petition the Democratic Senatorial Campaign Committee on Monday to withhold funding from the handful of Democratic senators who support Gorsuch, even though some of these incumbents from red states are seen as the last vestiges of the party in those areas.

"Not only is the base there, but the politics of the moment demand it. Democrats are looking for members to take a stand," said Democratic strategist Jim Manley, a former top aide to Harry Reid, who altered the filibuster rules in 2013 to approve then-President Obama's stalled executive appointees. "To the extent there is any peril, it would be struggling to find a way to vote for the guy."

Republicans had been counting on some of the 10 Democrats up for re-election in states that Trump won to help prevent a filibuster, but only three — Sens. Joe Manchin of West Virginia, Heidi Heitkamp of North Dakota and Joe Donnelly of Indiana — announced their support for Gorsuch. Two others in deep red states — Sens. Claire McCaskill of Missouri and Jon Tester of Montana — oppose his nomination.

By Monday, 42 Democrats supported the blockade.

"The Republican majority is going to have to decide now how they will act in response to Democrats saying, ‘We're not ready to vote for cloture,’" said Delaware Sen. Chris Coons, a member of the Judiciary Committee. The committee passed Gorsuch along on Monday on a party-line 11-9 vote.

Republicans have argued that Democrats’ filibuster is unprecedented and shows that they’re unwilling to support any nominee from Trump, no matter how qualified. Democrats have argued that Republicans will be responsible for creating a more partisan chamber, changing chamber rules to help an unpopular and controversy-ridden president. The argument figures into the party's playbook for next year's midterms.

"Democrats can make the 2018 campaign about how the GOP Congress was a rubber stamp for President Trump — and rigging the system to get Trump's guy on the Supreme Court is just one example," said Jesse Ferguson, a Democratic strategist. "It's impossible for them to explain to voters why they rigged the system to confirm a justice for a president who didn't have popular support and is under the gray cloud of scandal."

Few Democrats see political peril in opposing the Gorsuch nomination. Tester, the senator from Montana, a state Trump carried by 20 points, said he has serious policy reasons for opposing Gorsuch, but added he thinks he’s on solid political footing. He said that the president made promises to Montanans that have been difficult for him to fulfill. "All this stuff doesn't turn out to be panning out too well for him.”

Last week, McCaskill of Missouri warned of the political pitfalls for Democrats in filibustering Gorsuch. “I’m very uncomfortable being part of a strategy that’s going to open up the Supreme Court to a complete change," she told Democratic donors, according to an audio recording obtained by the Kansas City Star. But by the end of the week, McCaskill announced her support for the filibuster.

Though enough Democratic senators rallied to filibuster Gorsuch, progressive groups weren’t satisfied. Monday afternoon, several of them presented the Democratic Senatorial Campaign Committee with more than 230,000 signatures asking the committee not to spend on behalf of Manchin, Heitkamp, Donnelly and any other Democrats who voted for Gorsuch. Spokespersons for several of the groups could not identify how many of those petitioners hailed from the states of senators supporting Gorsuch.

Kurt Walters, campaign director from Demand Progress, a progressive grassroots organization, pointed out that the DSCC had been sending fundraising pitches based on a Democratic filibuster of Gorsuch.

“The DSCC should not raise funds to back a filibuster and then send those funds to senators who undermine the filibuster,” Walters told RCP.

Sen. Chris Van Hollen, chairman of the committee, rebuffed those calls.

“We’re going to support all our Democratic candidates because it’s really important that we hold the blue line in the United States Senate,” he said.

Democrats have also argued that these red-state Democrats know their voters well, and that supporting more progressive or less well-known candidates in heavily Republican states would not likely be a winning strategy.

“I think it’s important to recognize that if these members were not representing these states, you’d probably have a Republican senator,” Van Hollen said.

Members of the progressive organizations, however, disputed the idea that limiting financial backing to these red-state Democrats would inevitably help Republican candidates win and increase their Senate majority.

Claire Sandberg, co-founder of the progressive group #AllOfUs and a former digital organizing director for Sen. Bernie Sanders’ presidential campaign, said they hoped to challenge the idea that the way to win in red states was with “Republican lite” politics.

“It is important long term for the Democratic Party to have principles,” she said. “Those principles, if they mean anything at all, have to include aggressively fighting someone like Neil Gorsuch, and that has to be, across the board, the standard for the party."

Erich Pica, president of Friends of the Earth, a progressive environmental group, also said he didn’t think pulling money from these senators would end up helping the GOP. He said that while senators may have made their choice on Gorsuch based on the politics of their states, he didn’t think the DSCC, or Democratic Party writ large, should be supporting those choices.

“We do not want the politics of the Democratic Party dictated by these three rogue senators and the ones that are looking for re-election in tough states,” Pica said. “There is a bigger thing that we’re playing here for, and that is for a larger progressive movement that is in full opposition to Donald Trump’s agenda.”

James Arkin is a congressional reporter for RealClearPolitics. He can be reached at jarkin@realclearpolitics.com. Follow him on Twitter @JamesArkin.

Caitlin Huey-Burns is a national political reporter for RealClearPolitics. She can be reached at chueyburns@realclearpolitics.com. Follow her on Twitter @CHueyBurnsRCP.

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